MSPB Releases FY 2017 Report

On January 19, 2018, the Merit Systems Protection Board issued its FY 2017 Annual Report, which highlighted the Board’s lack of quorum, the most “critical issue” during the past year.

The Report’s foreword, written by Vice Chairman Mark Robbins, addressed the lack of quorum, stating that the absence of any other Board members (aside from Mr. Robbins) prevents the Board from “issuing decisions on petitions for review and other cases at headquarters, and publishing reports of merit systems studies.” Additionally, Mr. Robbins stated that the Board was unable to promulgate new regulations in response to Congressional changes in the Board’s jurisdiction or processes when necessary. Despite the lack of quorum, the Board’s legal staff continues to draft decisions, and Mr. Robbins has continued to vote on those draft decisions. As of December 31, 2017, there were 750 cases pending before the Board (the largest number in the Board’s history), and the number is still growing.

Because of the lack of quorum, the MSPB has been unable to promulgate necessary regulations to implement the Board’s new authorities under the Department of Veterans’ Affairs Accountability and Whistleblower Protection Act of 2017, WPEA amendment by way of the “Follow the Rules Act,” and Congress’s grant of authority for a single Board member to extend Office of Special Counsel stay requests.

The Report states that MSPB Administrative Judges in the regional and field offices issued initial decisions in 5,811 cases last year. 5,406 of those cases were appeals. 378 of those cases were addendum cases (88 requests for attorney fees, 85 Board remand cases, 174 compliance cases, 6 court remand cases, 18 requests for compensatory damages, 6 requests for consequential damages, and 1 request for liquidated damages). 27 of those cases were stay requests. In addition to those 5,811 cases, administrative judges also decided 10 original jurisdiction cases.

Of the 5,406 initial decisions issued in appeals, 2,177 of the appeals were appeals of adverse disciplinary actions. 976 (or 44.83%) of those appeals were dismissed, whereas 1,201 of those appeals were not dismissed. Of those appeals that were not dismissed, 714 were settled and 487 were adjudicated by the Administrative Judge.